DTCI: The Affordable Care Act and medical malpractice claims

September 10, 2014

By Patricia A. Mastagh

mastagh-patricia-dtci Mastagh

The intent of the Affordable Care Act is to provide access to competent and quality health care to all Americans. For some Americans, however, the Affordable Care Act has left them in worse circumstances than before its enactment. Specifically, some disabled citizens seem to have been negatively affected. The impact of the Affordable Care Act on claims filed under Indiana’s Medical Malpractice Act remains to be seen.

Usually, a medical malpractice claim triggers a search for contributory negligence to bar a plaintiff’s recovery. As detailed in jury instructions and caselaw, contributory negligence is conduct by the plaintiff that legally contributes to his harm and falls below the standard of care. See Smith v. Hull, 659 N.E.2d 185 (Ind. Ct. App. 1995); Havert v. Caldwell, 452 N.E.2d 154 (Ind. 1983); Holtam v. Sachs, 136 Ind. App. 231, 193 N.E.2d 370 (1963); Huey v. Milligan, 175 N.E. 698 (Ind. 1961); Restatement 2d Torts § 463. To prove contributory negligence, the defendant must show that the plaintiff’s negligent act was a proximate cause of plaintiff’s injury and that the plaintiff was actually aware of or should have appreciated the risks involved. See Memorial Hospital of South Bend, Inc. v. Scott, 300 N.E.2d (Ind. 1973).

To constitute a bar to recovery, the patient’s contributory negligence must unite in producing the injury and, thus, occur simultaneously with the alleged negligence of the defendant. It must constitute at least part of the cause of injury. Sawlani v. Mills, 830 N.E.2d 932 (Ind. Ct. App. 2005). A patient’s negligence that occurs entirely after a doctor’s medical negligence is not a complete defense to recovery for the original injuries, but it may mitigate damages. Sawlani, 830 N.E.2d 932.

Indiana Civil Jury Instruction 1509 defines contributory negligence and the burden of proof as follows:

[Defendant] claims [plaintiff]’s own negligence contributed to the [injury/harm] [plaintiff] claims to have suffered and that [plaintiff]’s negligence was a responsible cause of the [injury/harm]. We call negligence of this kind “contributory negligence.”

[Defendant] has the burden of proving by the greater weight of the evidence that [plaintiff] was contributorily negligent.

If you decide that [plaintiff]’s contributory negligence was a responsible cause of [his][her] [injury/harm], then [plaintiff] cannot recover damages even if [defendant] was also negligent.

Under normal circumstances, the plaintiff’s failure to take prescribed medication, to attend medical appointments, and to undergo medically necessary procedures is arguably contributory negligence on the part of the plaintiff. If the plaintiff acted in this way, it could lead to a defense verdict and bar any recovery by the plaintiff.

But the question raised by the Affordable Care Act is whether a situation has been created in which the plaintiffs’ bar could argue that a plaintiff’s failure to comply does not constitute contributory negligence but instead creates a duty of strict liability on the part of the health care provider.

An example

Consider the case of Plaintiff F, who is disabled due to pulmonary hypertension and lupus. Approximately two-and-a-half years ago, F was diagnosed with pulmonary hypertension. F still recalls the day she received this diagnosis and her pulmonologist “pronounced a death sentence” by telling her that her life expectancy was now three to five years. He referred F to a cardiologist who performed an experimental procedure on F that successfully – but for only a short period of time – lowered the pressure in her heart and lungs. This allowed her to breathe more easily and to function more normally. Since that time, her symptoms have returned and slowly worsened.

Before her diagnosis, F was gainfully employed as a manager for a convenience store chain. However, F is now disabled and receives Social Security disability benefits. Her journey to receipt of these benefits was quite remarkable and unusually speedy, in that she received them on her first appeal and within a year of her diagnosis of pulmonary hypertension. Initially, F received $650 per month in disability benefits. She also received insurance coverage under Medicare and Hoosier Healthwise. She paid no premium for the insurance and was financially responsible for only a minimal medication co-pay.

Almost midway through F’s life expectancy span, as pronounced by her pulmonologist, the Affordable Care Act was implemented. With its implementation, F received notification from Hoosier Healthwise that her insurance coverage was now being administered by Advantage Health. The correspondence welcoming F to the Advantage Health family included notification that the monthly coverage fee of $104 would be subtracted from her monthly disability check. In addition, her prescription co-pay was increased and a co-pay of $49 for visits to specialty physicians was added. F sees her pulmonologist and/or cardiologist at least once a month, and so her monthly income is reduced by at least $49 with each visit.

F takes many different medications, three of which are prescribed specifically for her pulmonary hypertension. She has been told by her physicians that failure to take these medications could further shorten her life span and hasten her death. Fortunately, one of the medications has been on the market for many years and is available in generic form, so it is covered by F’s insurer. The second medication costs slightly over $1,100 per month, of which approximately $800 is covered by the insurer. F’s local pharmacist has found government and charity assistance to cover the remaining $300 per month.

The third, and most important, medication was recently approved by the FDA, and F was the first patient in Indiana to receive it. She takes the medication twice daily at a cost of $600 per day. While the $18,000 per month had been paid by Hoosier Healthwise, it is not covered by Advantage Health. Her cardiologist gives her samples whenever he has them available to ensure that she is not without the medication. She receives the medication from a specialty compounding company in Pennsylvania. While the coverage issue is disputed, she continues to receive the medication and is searching for assistance programs to help cover the cost.

F’s monthly income is currently insufficient for the support of herself and her teenage son, and the waiting list for government-assisted housing is two years. She lives with a friend and contributes whatever she can toward the cost of the household expenses. She drives an older model car in which the air conditioning is broken. She lacks the funds to fix the air conditioner and driving in the summer heat and humidity hampers her breathing and further limits her mobility.

Medical malpractice claims

So how does this socio-political issue remotely relate to the Medical Malpractice Act? Although F is not contemplating filing a medical malpractice claim, her circumstances and the final outcome of her case give occasion to ponder the implications for potential malpractice claims. What would happen should F fail to take her medications, to attend all her doctor appointments, or to undergo medically necessary treatment due to her changed financial circumstances? Would this affect the pursuit of, and defense of, a medical malpractice claim?

Before the implementation of the Affordable Care Act and the cost of her medications and health care treatments were covered by insurance, F’s noncompliance could not be attributed to any financial inability to comply with treatment recommendations. Has the implementation of the Affordable Care Act modified this defense or rendered it invalid? If so, what are the implications to defending such a claim?

The central question is what is the patient’s obligation for her own health care in cases like that of F? The patient has already been diagnosed with a terminal illness. Employment is out of the question. Neither the patient nor her family has the financial resources to pay $18,000 a month for a life-sustaining medication. There is no guarantee of governmental or charitable assistance. The patient is forced to accept the default choice of the finality of the terminal illness, which most likely has been hastened due to the noncompliance. Suppose F had an otherwise viable medical malpractice claim. Would a jury attribute contributory negligence to her, or might a jury think that the provider owed some – or even a heightened – duty of care due to the plaintiff’s circumstances?

In a situation such as F’s, the physician would have known the patient’s financial condition. When the physician provides pharmaceutical samples for the patient, is he establishing a duty to continue doing so when he knows the patient cannot afford the medication and insurance is not paying for it? Is the physician or his staff required to research and find governmental or charity assistance programs for the patient?

What are the implications for the physician if he prescribes a less expensive and less effective medication for the patient, believing that a less effective – but affordable or covered – medication is better than no medication at all. Similarly, what is the physician’s duty to provide medically necessary procedures instead of postponing them or performing less effective procedures? Under the Affordable Care Act, the reimbursement for treatment and services rendered to the patient has been cut, particularly for patients on Medicare and Medicaid. Providers are not part of the fee approval process, medication formularies or approved treatment protocols for Medicare and Medicaid, although both the provider and the patient are governed by them. Is the provider now to provide these services free of cost in a situation such as F’s?

The duty of a medical specialist is to focus his practice on diagnosing and treating a particular medical condition, consistent with the current state of scientific knowledge. A medical specialist must use the same degree of care and skill that other specialists in the field would have used under the same or similar circumstances at the time of treatment. See Indiana Civil Jury Instruction 1515.

The health care provider commits medical negligence when he fails to use the degree of care and skill that a reasonably careful, skillful and prudent provider of the same medical specialty would use under the same or similar circumstances. Medical negligence may consist of doing something the health care provider should not have done under the circumstances or failing to do something a health care provider should have done under the circumstances. See Indiana Civil Jury Instruction 1511. To prove medical negligence, a plaintiff must establish that the defendant had a duty in relation to the plaintiff; failed to conform to the requisite standard of care required by the relationship; and the plaintiff was injured as a result of that failure. Munsell v. Hambright, 776 N.E.2d 1272, 1279 (Ind. Ct. App. 2002).

Conceivably, situations such as F’s could pose a conundrum for health care providers. Would a jury find that a physician failed to act prudently if he failed to provide pharmaceutical samples; if he provided a less costly but less effective medication in lieu of the preferred treatment; or if he postponed beneficial medical procedures? Does the Affordable Care Act create a new requisite standard of care and, if so, what is that standard of care?

Would a jury find that a physician breached the standard of care and did something that he should not have done (i.e., prescribed less effective medications, performed less effective procedures or postponed necessary procedures) or that he failed to do something that he should have done (i.e., continue supplying his patient with samples, perform necessary procedures, or find financial aid to enable the patient to pay for proper medications and treatments)?

Would a jury focus solely on the social aspect of the claim? That is, would it find that a physician, by virtue of his resources, is better able than the patient to bear the financial cost of the patient’s medications and treatment and, thereby, apply a duty of strict liability upon the physician? Would a jury see the Affordable Care Act as imposing a duty upon the physician to navigate the health care system for the patient and to ensure the patient’s compliance?

There could be any number of patients like F whose situations have been worsened by the Affordable Care Act. Again, while this is largely a socio-political issue, it is prudent to pause and reflect on the impact the Act may have on medical malpractice claims.•

Ms. Mastagh is an associate in the South Bend office of Hunt Suedhoff Kalamaros and is a member of the Health Law Litigation section of DTCI. The opinions expressed in this article are those of the author.


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